A legal primer in the grocery tax veto case

By Seth Ogilvie, Idaho Reports



Most people following the the grocery tax repeal veto drama are focused on the political drama of the court’s pending decision (Republican lawmakers challenging a Republican governor’s veto) and the fiscal impacts — not just for Idahoans’ grocery bills, but for the state’s coffers.

But as Idaho Reports producer Seth Ogilvie explains, there are big legal implications surrounding the challenge, too.


A grocery tax study guide

The Idaho Supreme Court has three major questions to answer if it wants to overturn the 1978 Cenarrusa v. Andrus decision and the Governor’s veto on the grocery tax repeal bill. None of them have anything to do with food, but all of them could have dramatic implications.

Did the right people make the argument?

In April, 30 legislators sued to invalidate the grocery tax veto. In order for the court to decide the merits of the case, first the legislators have to convince the court they have standing. Justice Robyn Brody outright asked the question, “Who has standing to bring this case?” in oral arguments on June 15.

In layman’s terms, standing means the legislators have to show that they have been harmed or will be harmed. The Supreme Court laid out its own matrix in Coeur d’Alene Tribe v Lawrence Denney:

“[T]o establish standing a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a like [lihood] that the injury will be redressed by a favorable decision. An injury sufficient to satisfy the requirement of an injury in fact must be concrete and particularized and actual or imminent, not conjectural or hypothetical.”

According to the same opinion, the injury also has to be “actual or imminent losses of profit or rights greater than the average citizen.” It’s hard to argue that these 30 citizens would have any greater injury than any other citizens, but they’re not everyday citizens. They are representatives and senators of the Idaho Legislature. It would be far easier to prove the Senate or House as institutions are suffering harm rather than the individual legislators themselves, because they are the branches of government directly impacted.

“Although these are very dear friends that are the petitioners, they don’t represent the legislature, they represent themselves as legislators,” said Senate Majority Leader Bart Davis (who, since our interview, was nominated to be the new US Attorney for the District of Idaho). “They don’t represent even the majority of one of the two bodies… so legislators don’t normally have by themselves standing, or at least we don’t normally think of it that way.

“The Supreme Court understood that,” Davis added. “I could see that they understood that.”

The governor’s lawyer, David Hensley, agreed. “A grocery store owner in a border community would have standing,” Hensley said during oral arguments, but not the 30 petitioners.

This, however, is not the end of the argument. Bryan Smith, the attorney for the petitioners, pointed to another line from Coeur d’Alene Tribe v Lawerence Denney:

“The Tribe has not demonstrated a ‘distinct and palpable’ injury sufficient to confer standing… However, we may nonetheless exercise jurisdiction over this writ.”

To put it another way, if the court thinks this case is important enough, it will hear it anyway.

If the court decides to concur with the Coeur D’Alene Tribe case and overlook standing, a good explanation by the court is needed in the wake of Joki v. State, the school funding case in which the court dismissed the claim because the plaintiffs did not demonstrate proper standing despite a clear importance of the case.

“CBECA provides three distinct types of standing to sue. I.C. § 6-2205. To properly add the State Defendants, Joki was required to comply with Idaho Code section 6-2205(3). He did not. Accordingly, notwithstanding their various responsibilities, the State Defendants were properly dismissed.”

If the court is able to navigate through the standing argument without dismissing the case, it will still find another hurdle in getting to the merits of Cenarrusa.


The petitioners are asking for a writ of mandamus, or “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion,” according to the Wex Law Dictionary.

“The court is going to have to decide whether this is the right process to bring it to the Idaho Supreme Court,” Davis explained.

The writ of mandamus is typically given only when there is no alternative means of seeking review. The Attorney General’s office argued that the petitioners had not yet exhausted their alternative means. In other words, they had not gone to district court, but instead went straight to the Supreme Court.

Deputy Attorney General Brian Kane said “The hazard here is if the court immediately takes up the constitutionality, the court has created a shortcut to its bench.”

“It’s procedurally strange,” admitted Smith. He argued it was necessary, though, adding it “does not present a can of worms.”

The court has a difficult procedural question, as posed by Kane: Does this court want to create a shortcut to its bench?

If justices agree a writ of mandamus creates a “shortcut,” the prudent thing for the court to do is show judicial restraint and allow the district court to address the issue. If they believe it is only “procedurally strange,” it will be interesting to see how the court puts up a roadblock for future cases attempting to use this shortcut.

There is an additional complication to sending it down to district court: The time frame. The legislature will most likely deal with the grocery tax issue itself when it reconvenes in January 2018, and then the court would have no ability to address the Cenarrusa decision. These types of veto challenges don’t come before the court often, and with the window to overturn Cenarrusa closing a little bit more every day, it truly will take a heroic act of judicial restraint to not take a swing at the case if the court does want to overturn the ruling.

Is Cenarrusa correct?

In the 1978 Cenarrusa v Andrus decision, the Idaho Supreme court ruled that the Governor had ten days from the time he or she received the bill to veto a piece of legislation — a ruling that some believe directly contradicts the Idaho state constitution, which says the governor has ten days from the legislature adjourning at the end of the session.

Remember, Gov. Otter didn’t receive the grocery tax repeal bill until two days after the legislature adjourned for the session, and he vetoed it eleven days after sine die. The very question of the challenge rests on when the clock started ticking for his veto.

“I have felt for some years that the holding of the Cenarrusa decision was ripe for reconsideration,” Davis said.

The 1978 court interpreted the intent of the constitution, rather than the plain language of the text, as Smith pointed out. “Where is the ambiguity in the phrase?” Justice Horton asked in oral arguments. “Within ten days” would not seem to jive with an 11th or 12th day veto, but separated by six commas you find the phrase “presented to him.” The legal term “stare decisis” in Latin means “to stand by things decided.”

“It is the duty of this court to apply stare decisis,” said Justice Roger Burdick during oral arguments. The court has decided on this question in Cenarrusa. They decided the phrase meant ten days from presentment.

But Smith didn’t see it as an interpretation. “What the court did in Cenarrusa was amend the constitution,” not interpret it, he said. This essentially pits the constitution against stare decisis. We all know the importance of the constitution, but stare decisis has a more complicated impact.

In oral arguments, attorneys and justices also discussed the 3-2 vote in the Cenarrusa decision. It being such a close vote, should the attorney general and the governor’s lawyers have advised Otter that he should meet the 10 day requirement just in case? Stare decisis would tell us no, as many important decisions were decided on close votes: Miranda v. Arizona, District of Columbia v. Heller, Bush v. Gore, Citizens United V. FEC, United States v. Windsor, and Obergefell v. Hodges, just to name a few of the U.S. Supreme Court biggies. Stare decisis tells us we shouldn’t constantly reconsider whether or not you have Miranda rights or gun rights, or if President George W. Bush should have been president every other year. Doing so would create judicial and social chaos.

Then there is Justice Burdick’s other question: “Why isn’t Cenarrusa a good government decision?” The Idaho state government has run reasonably well under the current interpretation of the governor’s veto power. If changed, “the court will be jerking the rug out from underneath the governor,” Hensley said.

In the final days of the legislature, things move fast. After sine die, legislators head home almost immediately, and often times staff members take a short break. This year sine die was on a Wednesday — March 29th — and the bill was delivered two days later, on Friday, March 31st. If you give the governor two days for the weekend (because he deserves a weekend just like the rest of us) and if you remeber this year the governor was sick at the time (remember the postponed sine die press conference?) that puts us at the following Monday. (Even then, Otter still appeared to be showing some symptoms of his illness at the Monday sine die press conference.)

Then on Wednesday, April 5th, Jerome “Sunny” Otter, the governor’s brother, passed away. I think common decency would give him at least two days to deal with a loss like that. Throughout that time, the governor also had to run the state and deal with the dozens of other pieces of legislation. If we use the 10 days from sine die rule and subtract the days we gave the governor due to either sickness tragedy or lack of having the bill, he’s left with either one or two days to veto the legislation, depending on how liberal you are with the sick time. If you went from the time of presentment a la the Cenarrusa decision, he vetoed the bill a day ahead of schedule.

The other issue: There is no constitutional requirement saying the Idaho Legislature has to turn the bill over to the governor before the ten day deadline. The system is solely dependent on the decency of the people holding the offices to transmit legislation in a timely fashion.

However, “even if the Idaho Supreme Court were to reverse the Cenarrusa standard,” Davis said, “if the Legislature held onto (a bill) for 8 or 9 or 10 days, then I think the court could take a look on a case-by-case basis on whether there is a different remedy.”

That would leave Idaho with a different deadline for the governor’s veto, and the court system responsible for keeping the Legislature honest. However, if the court decides to overturn Cenarrusa, that doesn’t mean they will decide to overturn the specific grocery tax veto.

Should the governor be punished for following the law?

The governor was following the law at the time of the veto. As Kane argued, “the state (would be) punishing state actors for complying with the ruling of the court.”

There is, however, one elegant solution to that problem. If the court decides it is comfortable with the standing issue, thinks it is the right court to hear the case, and wants to overturn Cenarrusa, but doesn’t want to punish the governor or create a precedent by which people should doubt close court decisions, they could overturn their previous decision but apply it only to vetoes after the decision, allowing the veto to stand but reversing a ruling they didn’t agree with.

In other words, the court could toss Cenarrusa, but allow Otter’s veto anyway.

More than just taxes

Like all legal fights, we’re going to eventually have a conclusion. Here are the big questions Idaho needs answered by the court: How does the court judge standing, and will it set a bad precedent? How do justices explain the proper court of origin, and will that explanation create a shortcut to the bench? And if they get past those hurdles, what happens to Cenarrusa? And will any of this effect the six percent tax on groceries?

I told you this had almost nothing to do with food.


















Licensing requirements: An unexpectedly hot topic

On Friday, acting governor Brad Little signed an executive order on licensure review, instructing all state agencies to report on occupational licensing by July 1, 2018 to determine “whether the licensure requirements are necessary and in the public interest,” according to the press release from Little’s office. You can read the press release here. 

In April, Idaho Reports looked into licensing requirements for private contractors and home inspectors. You can watch that episode here. 

And if you want any more takes, Wayne Hoffman of the Idaho Freedom Foundation weighed in here. 




On Idaho’s public defense, and what’s next

On Friday,  the Idaho Supreme Court released a decision allowing the ACLU of Idaho’s lawsuit over public defense to go forward in district court — nearly two years after the initial challenge, and ten years after the State Appellate Public Defender first asked for a study on Idaho’s indigent defense. While we wait for the court to make a decision, Idaho’s counties, attorneys, and defendants are still dealing with the reality of a strained public defense system.

While the district court initially agreed with the state that the ACLU hadn’t sued the correct parties (that was the decision the Supreme Court partially reversed on Friday), Idaho courts haven’t yet ruled on the merits of the case itself — that Idaho’s indigent defense system is constitutionally inadequate.

As we’ve reported before, Idaho isn’t the first state to face lawsuits over the constitutionality of its public defense system. (Nor is it the most recent: Louisiana and Missouri are the latest in a growing list to face similar challenges.)

And the state and ACLU aren’t the only players. In April 2016, three months after the initial lawsuit was dismissed, then-US Attorney Wendy Olson and the Department of Justice filed a friend-of-the-court brief on behalf of the ACLU,  saying “The United States has a strong interest in ensuring that all jurisdictions – federal, state, and local – fulfill their constitutional obligation to provide counsel to criminal defendants and juveniles facing incarceration who cannot afford an attorney.” (For much more on the larger implications of the nation’s public defense issues, read this post from May 2016.)

That brief came after the 2016 Legislature passed the first step of public defense reform, which included $5.5 million for the state’s Public Defense Commission to provide grants to counties and establish standards.

But by that point, the ACLU’s challenge was already in motion. Now that the Supreme Court has remanded the case back to trial court, we have to wait and see whether the Legislature’s actions are enough.

Meanwhile, some counties are still facing the reality of an overburdened public defense system — and in at least one case, struggling to keep their defenders. In September, Nez Perce County increased the pay for its contracted public defenders by $25,000 each after two left their position  (Eventually, one attorney returned to the position, while the second left. The county filled that vacancy with another attorney.)

Nez Perce County had previously been cited as having overburdened public defenders, and Idaho Reports profiled the county in 2015 to explore its indigent defense workload. You can watch that episode here. 

Idaho Reports will continue to report on public defense reform. And if recent history is any indication, we’ll have a while before we get a final answer.


Supreme Court to allow public defense challenge to go forward


By Melissa Davlin and Seth Ogilvie, Idaho Public Television

The Idaho Supreme Court will allow a challenge on Idaho’s public defense system to go forward, partially rejecting the state’s argument that it isn’t the correct defendant in the case, and holding that the state is not immune from the lawsuit.

The court agreed that there are issues with the state’s public defense, saying “Appellants suffered ascertainable injuries by being actually and constructively denied counsel at critical stages of the prosecution, which they allege are the result of deficiencies in Idaho’s public defense system.”

The opinion, issued Friday morning, isn’t on the public defense system itself; Rather, it partially reverses a district court dismissal of the case. Friday’s opinion does allow the challenge to go forward, but without Gov. C.L. “Butch” Otter as a defendant.

In arguments, the state’s attorney hadn’t claimed the public defense system was robust, but said the state wasn’t the right party to sue. The Supreme Court disagreed. “The state would create a substantial likelihood of remedying the injuries alleged because the state has the power, and indeed, the responsibility to ensure public defense is constitutionally adequate,” the opinion says.

“The (Public Defense Commission)’s failure to promulgate these rules illustrates the appellants’ injuries are fairly traceable to the PDC,” it adds.

The Supreme Court did agree with the state, however, that Otter wasn’t responsible for the defendants’ issues.

“Unlike the state, the casual chain linking appellant’s injuries to governor is too attenuated,” the opinion says. In other words, it was difficult to show a link between Otter and the plaintiffs.

“The right to counsel which appellants seek to vindicate is not entrusted to a particular branch of government, nor does a particular branch of government merely have discretion to enforce the right to counsel a fundamental right,” the opinion says.

We’ll have more on this on Idaho Reports. In the meantime, here’s the opinion and the summary.




Idaho Reports web extra: Congressman Labrador Meridian town hall

On Wednesday, Congressman Raul Labrador returned home from DC to face a rowdy — and sometimes angry — crowd of constituents at a town hall meeting in Meridian.

Questions ranged from abortion to net neutrality, health care to Mar-A-Lago, and the constitution to rockhounding. Initially, Labrador and his team planned to cut off the event after an hour and a half, but the congressman stayed and answered everyone’s questions. Ultimately, the meeting lasted more than three hours.

And while some didn’t like his answers, several commented they were impressed with his stamina. You can watch the whole meeting here:

The congressman offered his thoughts on the “town hall hoopla” in his Friday newsletter, saying the crowd was “boisterous, but largely respectful.”

Labrador will host another town hall meeting at 6:30 pm on Monday, April 24 at Mission Aviation Fellowship in Nampa.

For more, watch the April 21 episode of Idaho Reports. Idaho Reports airs 8 pm Fridays on Idaho Public Television. You can also watch online at idahoptv.org/idreports.


Payday loans, poverty and welfare: An uncomfortable relationship


A $1024.54 payment to Moneytree Inc through the Department of Health and Welfare’s Navigation program, which helps families in poverty.

(Note: This story is part of an Idaho Reports series on Temporary Assistance for Needy Families, or TANF.) 

By Melissa Davlin, Idaho Reports

You’ve seen ads for payday loans, and you’ve likely heard about the dangers — high interest rates, fees for late payments. But there’s a small amount of taxpayer dollars that goes to help people pay off those loans in an effort to nudge them out of a cycle of debt.

Temporary Assistance for Needy Families, or TANF, is a federally funded block grant program that has a wide variety of uses. The Idaho Department of Health and Welfare receives TANF money that it uses for programs like adolescent pregnancy prevention and job training. (Read more about adolescent pregnancy prevention programs here.)

A small number of Idahoans also receive cash assistance or help paying bills, said Courtney Keith, the DHW Navigation Program Manager for Family and Community Services. Some of those bills are loan payments.

So does that mean the state is using taxpayer dollars to perpetuate payday lending businesses? The answer, Keith said, is more complex than that.

First, a primer on the program: To qualify for TANF help through the Navigation program, an individual must have children in their household. When they enter the program, recipients are set up with a caseworker, who works with them for up to 120 days. That help could come in the form of connecting families with community resources, food banks, government assistance, or budgeting help. Not everyone receives the cash assistance or help with bills, Keith said, and community services often pitch in to help.

The families who receive help are in tough situations, Keith said — one missed rent check away from being homeless, a broken-down car preventing parents from getting to work, that sort of thing. As one of TANF’s primary goals is keeping children with their parents, the idea is paying utilities or mortgages will help keep those families financially secure. That, in turn, decreases the likelihood of children having to enter the foster system.

“These are families that are really on the fringes,” Keith said.

Idaho Reports reviewed more than 10,000 expenditures made through the TANF program between July 1, 2015 and June 30, 2016. The vast majority made sense: Payments for utilities, car repairs, checks to landlords.

A few entries stood out: Specifically, payments made directly to payday and title loan companies on behalf of welfare recipients.

These payments were a tiny fraction of the welfare payments made by the state. Out of 1,489 bill payments made on behalf of Idaho households in fiscal year 2016, only 18 of those were some type of loan payoff — equal to about $6,000, Keith said. Those loan payoffs are also legal.

Though the amount of money is small, it illustrates the uncomfortable position payday lending puts the department in.

Even if the vast majority of TANF dollars don’t go directly to payday lending companies, Keith said many clients who benefit from TANF have often turned to the loans when they’re desperate. While DHW actively counsels people not to use payday lending companies, a small amount of its TANF dollars goes to those same companies, arguably perpetuating their existence.


Source: Idaho Department of Health and Welfare

And the link between payday loans and poverty is well-established. According to Pew Charitable Trusts, the average payday loan borrower earns $30,000, and 58 percent have trouble meeting their monthly expenses. Seven in 10 borrowers use the loans for monthly expenses, like rent and utilities, and most end up paying more in fees and interest than they originally borrowed.

Sometimes, with education and budget help, as well as guidance on how to set up bank accounts, clients can get out of poverty cycles without any TANF payments on their behalf, Keith said. Counseling and education go a long way.

Heidi Caldwell, executive director of Western Idaho Community Action Partnership in Payette, said Idaho’s payday loans contribute to a cycle of poverty among clients she works with.

“People may not understand how those loans work and exactly what they’re getting into,” Caldwell said in a 2016 interview with Idaho Reports. “They’re just needing money maybe to keep their power on or to buy food or school clothes or something that’s an immediate need. And they may not understand that they have double to pay when they turn around.”

Keith said it’s frustrating to see lenders prey on individuals who don’t fully understand the implications of taking out a high-interest loan, especially when people are desperate to pay their rent or bills.

“People who fall into (the payday loan cycle) happen to be the most vulnerable in our society,” Keith said.

If clients stop receiving caseworker help after 120 days, how does the department know if the program is a success?

There are two metrics, Keith said: One, children stay in their homes. Two, the same families aren’t coming back for help again and again.

“That’s a pretty good indicator that they’re making it,” she said.

Seth Ogilvie contributed to this report.


TANF: Helping parents have the talk

(Note: This story is part of an Idaho Reports series on Temporary Assistance for Needy Families, or TANF.) 

By Nishant Mohan, Idaho Reports

When it came time to give her 14-year-old children “the talk,” Juanita Aguilar found it difficult.

“I tried to have the conversation with them before,” said Aguilar, a parent of four. “But it’s even harder to talk about sex and protection when you’re not talking with them about other things.”

Aguilar attended Southwest District Health’s Bridging the Gap Dinner, which seeks to help parents overcome barriers to talking with their children about sex, for the second time in early April. Other health districts host similar dinner throughout Idaho, paid for largely by federal welfare dollars appropriated to prevent out-of-wedlock pregnancy.

Aguilar, who works as a registered dietitian for Southwest District Health, has 14-year-old twins, a boy and girl. She said high school student volunteers at the dinners helped her understand the need to start a conversation and how to make it less awkward.

“They were brutally honest,” Aguilar said. “I think we needed to hear that.”

She said since the first dinner she attended, she has successfully talked with her 14-year-olds about sex.

Training parents to have “the talk” with their children and training teenagers to turn down sexual advances or use contraceptives is a far cry from the cash handouts many may imagine welfare to be.

The Temporary Assistance for Needy Families (TANF) block grant is what most people know as Clinton-era welfare reform. In Idaho, fewer than 100 people in Idaho receive basic assistance through this grant, and the checks, which are limited to $309 per month for a maximum of 24 months per lifetime, come with a requirement of employment or job training participation.

Idaho spends the rest of the TANF grant on a variety of other programs from childcare to workforce training. (Learn more about TANF by watching the April 7 episode of Idaho Reports.)

The Adolescent Pregnancy Prevention (APP) program, which is paid for in part by $167,000 of TANF money, uses a combination of events, a curriculum, and a youth group to help teenagers avoid getting pregnant. One of the four goals outlined in TANF is to “prevent and reduce the incidence of out of wedlock pregnancies.”

Aguilar said she and the other parents saw the student volunteers there as such a valuable resource, they stayed for another half hour past the set end of the dinner. She said she learned that she needs to talk with her children more about what they’re doing in general, so when it comes time to ask about sex, it’s less awkward.

“I’m working on the next one who’s eleven years old.” Aguilar said. “We’re working on just having regular conversations with him – things that interest us both.”

Another part of the districts’ adolescent pregnancy prevention programs is the Reducing the Risk Curriculum. The curriculum is a set of 16 sessions added to high school lesson plans, usually health or home economics, that give teens advice on how to avoid having sex and how to have safe sex.

Ana Vidales, health educator at Southwest District Health, said the nature of the curriculum requires a letter to be sent home with students in the modified classes for their parents to approve their children’s participation.

This program is not at as many schools as Vidales would like. A lack of funding and inconvenience in modifying existing schedules are factors, she said, but another barrier is that not all schools want the program in the first place.

“If the principals or board members, or someone involved in approving the program has a different point of view, it can be difficult,” Vidales said. “I understand not everyone’s going to like what I have to say, but there’s cold hard facts. Sex is happening and it’s not just something deviant people do.”

Currently, at least 460 high school students around the state receive the curriculum. Vidales said students take a pre-survey and post-survey before and after going through the curriculum to test their knowledge on contraceptives and sexually transmitted infections.

Vidales said some graduates of the curriculum are able to take a leadership position by working with parents and educators to reach out to their fellow students in the Youth-Adult Partnership, also part of the program. Vidales said students have even held their own informational nights for parents.

Heather Gagliano, project manager at Central District Health said the students in the pregnancy prevention programs quickly learn the importance of being able to ask questions safely.

“I was observing one of the nurses and a student asked a question and a couple students started giggling. Immediately a couple other kids said, ‘Hey, any question is safe here,’” Gagliano said. “It was really neat to see that. The students supported each other.”